Ultimate legal guide to electronic wills in the US

Ultimate legal guide to electronic wills in the US

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Wills are only starting to get caught up. As the pandemic has forced new changes to the way we can execute wills in the US, many laws across the country are starting to get to grips with tech. There’s not much information about the legality of wills online because of the novelty of the changes.

It’s no wonder there’s some confusion around whether or not wills can be executed, validated and signed electronically. And, as the UETA (Uniform Electronic Transactions Act) and ESIGN (Electronic Signatures in Global and National Commerce Act) have specifically excluded the electronic signing of wills in the past, where do we stand now? 

With the global situation forcing us to reassess our estate and will planning, many of us have been tripped up with the more traditional requirements of wills. From a survey by YouGov and Caring, 68% of Americans do not have a will and the “number of adult Americans that have a will or another type of estate planning document decreased by nearly 25% since 2017”. These numbers are in part because of the out-of-date requirements for will execution. 

As it stands, in many states, wills still need to be signed with wet ink on paper. Another tricky requirement within the pandemic is the need for the will to be witnessed and signed by two other people. 

“68% of Americans do not have a will and the number of adult Americans that have a will or another type of estate planning document decreased by nearly 25% since 2017”

However, there are new laws coming into effect across various states that affect the e-witnessing of wills online and the future of esigning of wills. We will discuss the introduction of the new Electronic Wills Act, your state’s legal requirements, and what you can and will be able to e-sign in the near future. 

It is considered good practice to make a will. A will is a legally binding document that states how and to whom you want your assets distributed. Another safety net you may want to consider is creating a ‘trust’. A trust is a legal arrangement where one or multiple trustees hold the legal title of your property for the beneficiaries of the will. A trustee, however, is responsible for administering a trust. And, an executor manages a deceased person’s estate, distributing their assets according to their will.

According to Garcia, Grinberg and Schaaf of Cadwalader Wickersham and Taft LLP, to execute a valid will, there are three main things you need. These are, 

  • That it is in writing
  • It is signed by a mentally capable testator
  • And, it is witnessed by a specified number of individuals as provided by state statute, which usually means two people. 

Keep in mind that wills and codicils become public when they are probated. Codicils are legal documents that change or add to an existing will. They  are used, for example, to add new family members or to update your wishes when there are changes. For bigger changes, it is better to write a completely new will. To probate a will is to check its validity and authenticity. 

Things can get a little tricker if you’re not a US national. So, if you are non-domiciled in the US, but you have trust and estates in the country, courts will accept the will if it has not been contested in the decedent’s domicile during the probated period. Being non-domiciled means that the state considers your permanent home or address in a different country. If you are domiciled in the US, then your permanent home is in the US. On this, US courts generally accept foreign wills, if they are not contested outside of the US. 

Can I sign my will electronically? 

Firstly, let’s discuss writing and making your will online. Wills have, in the past, had expectations to be written and executed in the handwriting of the individual, which has made wills a little slower in catching up with the tech. Lots of states have, in the past, discouraged us from writing our own wills, i.e. without a lawyer, by insisting on a strict abidance with The Wills Act. If there is anything amiss from the document, the will can be dismissed. 

Electronic wills are an “entirely new class of ‘wills’” that are made online from templates and guides, which challenge many of the long-established traditional views on an individual’s probate assets at death. Lawyer and legal advisor, Justin Brown, explains that the term ‘electronic will’ refers to “one of three types of testamentary documents: offline wills, online wills and custodian online wills”.

Each of these are accessible ways of writing wills digitally. But, they dorun into their own problems with authentication, storage online, on your personal computer, or with a separate company online. But, electronic wills are being used here and now. Lots of  do-it-yourself options have popped-up to help you make a will online. 

So, what about making it legally-binding? And, can you sign your wills electronically? On the 17th July 2019, the US passed the Uniform Electronic Wills Act which enables people to write, notorize, sign, and witness a will online in the USA, which has only been adopted by a couple states. Online wills are now deemed as legally enforceable in probate courts. To be clear, this is a very new development, and is only just being introduced. 

According to Chloe Lai from Rocket Lawyer,

Some states have drafted or passed use of electronic wills (see list below):

  • Utah, has enacted the Uniform Electronic Wills Act
  • Ohio, has introduced the Uniform Electronic Wills Act

With some stay-at-home orders at the moment plus social distancing, getting two witnesses is hard at the moment. Historically, judges enforced witnesses to be physically present for the “testator’s signature”, which essentially ruled out zoom calls, video conferencing or e-witnessing. With the E-wills Act, you can have your will witnessed using these tools, like video conferencing, to have your two witnesses present and able to sign. 

E-witnessing, however, is slightly different from using a zoom call. E-witnessing is not to be confused. It involves the software as the third party to ‘witness’ your general documents. This might be the future for wills, but it it not here yet. It is not enough to legally bind a will. Signable, for many other types of contracts, can usually attest to an electronic document’s veracity, as a single witness, once e-signed.

For many states, like California, New Jersey, Pennsylvania, Texas and Virginia, the person who has written and executed a will, or ‘testator’, can also use ‘holographic wills’. These are wills somewhat without signature witnesses. Holographic wills are more similar to a traditional will, but they require some future-proofing, in case the writing is brought into question.

There are slightly different requirements for holographic wills. For these, all or important sections of the will must be written in the handwriting of the testator, to prove intent in the future. If too much of the will is typed and printed, you run the risk of invalidating the document. Important to remember is that “empirical research shows that handwritten wills are disputed in court more frequently than formal wills drafted by an attorney”, explains Law Professors David Horton and Reid Weisbord.

Generally, holographic wills only require that their authenticity can be provable during the probate process. The probate process is a legal investigation into the validity and authenticity of a will. It also includes the “general administering of a deceased person’s will or the estate of a deceased person without a will”, says Julia Kagan from Investopedia. 

Things are changing rapidly in response to the global pandemic, and so many states have passed an emergency remote notorization and remote witnessing orders law. You can take a look at what emergency rules your state has passed from October 30th 2020. 

A full list of all the states that allow holographic wills:

  • Alaska
  • Arizona
  • Arkansas
  • California
  • Colorado
  • Idaho
  • Kentucky
  • Louisiana
  • Maine
  • Michigan
  • Mississippi
  • Montana
  • Nebraska
  • Nevada
  • New Jersey
  • North Carolina
  • North Dakota
  • Oklahoma
  • Pennsylvania
  • South Dakota
  • Tennessee
  • Texas
  • Utah
  • Virginia
  • West Virginia
  • Wyoming

How are wills different from planning my estate?

Will planning and estate planning both aim to do similar things, like providing your family with instructions on how your property should be taken care of. Estate planning is the more extensive, overarching process of outlining your wishes on your health, finances, etc. while you’re still living. It is a comprehensive set of different documents that will distribute everything after your death. 

Will planning involves making a last will and testament, which determines the distribution of property and clarifies future decisions on this. The will and testament are documents that are part of the estate plan.

What is the Electronic Wills Act and has it been introduced? 

The Uniform Electronic Wills Act is a proposed legislation model for wills, electronic signing, and e-witnessing introduced in 2019.  But, it is only introduced into Ohio state and enacted in Utah. It has not been adopted by any other states yet. It allows you to write, notorize-sign, and execute a will electronically. This means that your will is legally binding if you type it up online, sign it electronically, have it witnessed over zoom, and store it online. 

The pandemic has started to push the law of wills into the 21st century now with the emergency remote witnessing act. Now states are starting to experience the benefits of electronic wills and should enact permanent legal change to online and electronic wills in the USA. 

Willing.com have written extensively into the benefits and solutions of the Electronic Wills Act. Their paper has been published to encourage the legal change in the US government to wills online. With the ways we are working changing dramatically overnight, change to will signing law is in the air to help everyone feel safer and more comfortable about the future.

Next steps…

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Or contact our team for more information on keeping your online wills legal and what it means for e-signatures.